67 Mo. App. 90 | Mo. Ct. App. | 1896
Lead Opinion
In the year 1887, Irwin sold and conveyed to Taylor a vacant lot in Kansas City. The purchase price was $1,500, of which Taylor paid $300 in cash and gave his note to Irwin for the balance. In order that Taylor might erect a residence on the lot, Irwin agreed that Taylor might borrow from a third party $1,675 on the property, and that he, Irwin, would accept a second mortgage to secure the balance of the purchase money. Thereupon Taylor borrowed the above named amount from a loan company; executed to it his note and first mortgage, and gave to Irwin a second mortgage. Taylor built a house on the lot and occupied it for about a year; when, because of his inability to pay interest on the two mortgages, he made a sale and conveyed the same to one Hanback. The latter paid in cash about $130, which went to the extin
Plaintiff purchased the last named note and mortgage from the loan company; and, after foreclosing the same, brought this action against Irwin for a balance due thereon of about $1,300. This, of course, was originally the debt of Taylor. But plaintiff alleged in its petition, and sought to charge defendant Irwin on the alleged ground that when Hanback bought from Taylor, he (Hanback) assumed and agreed to pay this first mortgage; and when Irwin subsequently took a conveyance from Hanback, he (Irwin) likewise agreed and promised to pay said incumbrance.
There was a trial by jury, resulting in a finding and judgment for defendant Irwin, and plaintiff appealed.
Reversal is asked on two general grounds — that the court erred in giving and refusing instructions, and erred in admitting and excluding evidence at the trial.
As to the instructions, the court in effect told the jury that the clause, “subject to a deed of trust dated November 8, 1887, to L. R. Smith, trustee, to secure the payment of $1,675,” contained in the deed of Han-
It seems that this comprised about all the law necessary to be given to the jury. From an examination of plaintiff’s petition we find that it rested its right to recover on the affirmative of the above propositions— that is, that Hanback, Taylor’s grantee, agreed to pay the loan company’s mortgage, and that subsequently when Hanback conveyed to Irwin, it was agreed that Irwin would assume and pay said mortgage debt. The defendant denied these allegations; evidence was adduced on both sides of the issues thus made; and as the jury found in favor of the defendant, it must end the controversy, unless some other prejudicial errors were committed against the plaintiff.
The court properly instructed the jury as to the obligatory force — or, rather, want of obligatory force, of the words used in the conveyances: ‘‘subject to a deed of trust * * * of $1,675.” This clause properly construed did not impose a personal liability on either Hanback or Irwin to pay off the outstanding mortgage. Unless there was, at the time, an express agreement to that effect, they were not personally liable for the mortgage debt. Without proof of such an agreement, such words will be regarded as merely restrictive of the covenants of warranty made by the grantor. 2 Washb. Real Prop. [5 Ed.], pp. 117, 217, et. seq.; Hall v. Morgan, 79 Mo. 47.
After a careful review of the various objections relating to evidence, we find no substantial errors. At most, if error was committed, it was concerning some immaterial matter, or clearly not prejudicial. Judging from the very meager showing of the evidence, as set out in plaintiff’s abstract, it appears the court gave rather a wide range to lawyers and witnesses. This was particularly true with reference to the principal witness for the defendant. On this account the plaintiff’s counsel has complained — asserting that the witness was allowed, during his examination, to argue the case to the jury, etc. The proper conduct of the trial, in matters such as this, must be left to the sound discretion of the trial judge, and the appellate court will not interfere unless a manifest abuse of that discretion appears. The abstract contains only some mere excerpts •and detached portions of the testimony, and from these we are not in a position to declare affirmatively that the court abused its discretion.
Rehearing
ON MOTION NOB BEHEABING.
At the trial of this case, the defendant was permitted, over plaintiff’s objection, to read in evidence a certified copy of the trustee’s deed made in the foreclosure of the Taylor deed of trust, in which deed it appeared that the property was bought in for $500 by the plaintiff, who then held the incumbrance. The ground of objection was that it was not first shown by the oath or affidavit of the party seeking to introduce the instrument that the original was lost or not. within the power of the party wishing to use the same,, as required by section 2428, Revised Statutes, 1889.
In a motion for rehearing, complaint is made that we failed to notice this point in our original opinion. The point was considered in passing on the errors assigned, but we thought it an immaterial matter and failed to mention it in the opinion. Conceding that it. was error in the court to admit the certified deed when the defendant had not accounted for the absence of the original, yet its introduction could have worked no possible harm to the plaintiff. The sale of the-property under the deed of trust had already been proved by the indorsed credit on the Taylor note — • and this, too, was shown by the plaintiff itself. All that the trustee’s deed would tend to prove was that, the property pledged to secure the note in suit had. been sold under the deed of trust; that plaintiff had purchased at the price of $500; and it was also by-other evidence shown that this amount, less the trustee’s-fees and costs, had been credited on the note. The-other evidence in the case clearly established these-
The motion for a rehearing will be overruled.